Sidebars

Rachel Rebouché and Paul R. Gugliuzza | Shining the Spotlight On Gender Inequality in Patent Litigation

June 05, 2022 Kilpatrick Townsend & Stockton LLP Season 2 Episode 2
Sidebars
Rachel Rebouché and Paul R. Gugliuzza | Shining the Spotlight On Gender Inequality in Patent Litigation
Show Notes Transcript

In this episode, we welcome Temple University professors Rachel Rebouché and Paul Gugliuzza, authors of a forthcoming paper in the North Carolina Law Review titled, “Gender Inequality in Patent Litigation” —a data-rich paper that touches on many of the central themes in Season 2.

Rachel is a leading scholar in feminist legal theory, reproductive health law, and family law. She is the Interim Dean of Temple University Beasley School of Law, the James E. Beasley Professor of Law, and a Faculty Fellow at Temple’s Center for Public Health Law Research. Rachel is an author of Governance Feminism: An Introduction and an editor of Governance Feminism: Notes from the Field, a co-author of the sixth edition of the casebook, Family Law, and the editor of Feminist Judgments: Family Law Opinions Rewritten. Rachel received a JD from Harvard law school, an LLM from Queen's University Belfast, and a BA from Trinity University. 

Paul is an award-winning scholar, a sought-after author, and a teacher who specializes in civil procedure, federal courts, and intellectual property law with a particular focus on patent litigation. He has testified before both the U.S. Senate and the U.S. House of Representatives on topics of patent law, and his scholarship has been cited in over a dozen judicial opinions across all levels of the state and federal courts.  A summa cum laude graduate from Tulane University School of Law, Paul clerked for Judge Ronald M. Gould of the U.S. Court of Appeals for the Ninth Circuit and practiced in the Issues and Appeals group at Jones Day prior to his academic career.

In this episode, Rachel and Paul discuss the shocking gender disparity that continues to persist in private-practice patent litigation and the much more equitable distribution of legal work in government agencies. They also highlight the mechanisms that militate against greater equity in law firms.

Rachel’s and Paul’s paper shows unequivocally that gender disparity is neither a generational issue that will be resolved by the passage of time nor is it a pipeline issue due to insufficient female STEM lawyers. Through their research, we gain a greater understanding of how law firms must change their economic incentives and entrenched, unconscious cultures if they are to foster true gender equity. 

Highlights include:

• Studying the experience of women patent litigators from two different perspectives (4:37)

• Data-driven insight about gender disparity in the private sector vs. public sector (7:50)

• Why the government seems to do better on equality (9:36)

• Do client-created carrots and sticks actually nudge firms to improve gender equality? (17:26)

• Pulling the ladder after you climb it (24:48)

• Highlight, add women & stir (28:59)

• Unconsciously perpetuating exclusionary practices (31:37)

• The myth of not having enough women in the patent litigation pipeline (38:06)

• The arc of history is not inevitably leading to greater equity (43:00)

• Objective metrics as a means to track progress and propel further improvements (50:01)

Further Reading:
Overqualified and Underrepresented: Gender Inequality in Pharmaceutical Patent Law
Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit
@TempleLaw
@RRebouche
@prgugliuzza

April Abele Isaacson:

Welcome to Sidebars, Kilpatrick Townsend's limited podcast series focused on women and underrepresented groups in patent law. I'm April Abele Isaacson, a patent litigator and Office Managing Partner of the San Francisco office.

Kate Geyer:

And I'm Kate Geyer, a patent litigation associate in Seattle. We're here to discuss the gender gap in the patent bar and have candid conversations with female patent practitioners on their career paths.

April Abele Isaacson:

Today, Kate and I have the distinct honor of interviewing two professors from Temple Law School, Rachel Rebouché and Paul Gugliuzza. Rachel and Paul authored the paper Gender Inequality & Patent Litigation, with its forthcoming publication in North Carolina Law Review later this year.

April Abele Isaacson:

In the fall of 2021, I attended a webinar from the Federal Circuit Bar Association related to gender inequality among federal circuit advocates. Rachel and Paul were on the panel, and there was an excellent discussion related to this topic. One of the things they talked about in detail was their paper, and it was the inspiration for this season of Sidebars. I actually reached out to them to get this interview and we feel very fortunate to have done so.

April Abele Isaacson:

Rachel Rebouché is the Interim Dean of Temple University Beasley School of Law and a James E. Beasley professor of law. Prior to her appointment as Interim Dean, she was an Associate Dean for Research, a position she held from 2017 to 2021. She's also a faculty fellow at Temple Center for Public Health Law Research. Dean Rebouché is a leading scholar in feminist legal theory, reproductive health law, and family law. She is an author of Governance Feminism: An Introduction, and an editor of Governance Feminism: Notes from the Field. Dean Rebouché received a JD from Harvard Law School, a LLM from Queens University Belfast, and a BA from Trinity University.

April Abele Isaacson:

Prior to law school, she worked as a researcher for the Northern Ireland Human Rights Commission and at the Human Rights Center at Queens University Belfast. After law school, Dean Rebouché clerked for justice Cato Regan on the Constitutional Court of South Africa and practiced law in Washington DC, where she served as an Associate Director of Adolescence Health Programs at the National Partnership for Women & Families, formerly the Women's Legal Defense Fund, and as a women's health and public policy fellow at the National Women's Law Center.

Kate Geyer:

Professor Paul Gugliuzza is an award-winning scholar and a teacher who specializes in civil procedure, federal courts, and intellectual property law, with a particular focus on patent litigation. He has published articles in numerous leading law reviews including the Duke Law Journal, Georgetown Law Journal, Texas Law Review, Vanderbilt Law Review, and Virginia Law Review. Professor Gugliuzza has testified before both the U.S. Senate and the U.S. House of Representatives on topics of patent law, and his scholarship has been cited in over a dozen judicial opinions across all levels of the state and federal courts.

Kate Geyer:

His article, The Federal Circuit as a Federal Court, received the annual Best Article Award from the Federal Court Section of the Association of American Law Schools. Before coming to Temple, Professor Gugliuzza was professor of law at Boston University School of Law, where he received the Dean's Award in recognition for his teaching. Professor Gugliuzza graduated summa cam laude from Tulane University School of Law. After law school, he clerked for Judge Ronald M. Gold of the U.S. Court of Appeals for the 9th Circuit and practiced in the issues and appeals group at Jones Day in Washington, DC.

April Abele Isaacson:

As I mentioned, your paper was what actually caused us to be interested and focused on gender inequality and patent litigation, especially the data driven approach and offering solutions, or at least things that could be done to try to have more diversity equity and inclusion in patent litigation, and in particularly I know the paper focused on gender inequality. How is it that the two of you came together in the first place to write this piece?

Rachel Rebouché:

We came to this project because I work in feminist legal theory, reproductive health, I work on issues that touch on gender inequality. And Paul, his work is primarily on patent law, patent litigation, and civil procedure. And he had done research on who litigates cases in the patent system and gave me a draft to read having discovered this profound gender gap in patent appellate litigation. And we put our heads together because I started to think about how this data related to so much rich literature on women in the legal profession or people who identify as women, their experiences in the legal profession, and work that I had been reading around why it's not changing at the very highest levels of law firms and corporate life and in other sectors.

Paul Gugliuzza:

One of my research interests is in thinking a lot about how do the entities that decide patent cases, how do the identities of the lawyers who litigate patent cases, how do those things shape the substance of patent law or the patent system? And so I've done a lot of work looking at Court of Appeals for the Federal Circuit, thinking about how does the fact that we have this specialized appellate court for patent cases maybe change for the direction of patent law.

Paul Gugliuzza:

And as part of that interest, I'd been collecting some data on the demographics of lawyers who argue patent cases at the federal circuit. And one of the things that I noticed in the course of that research was it was mostly dudes. So I kind of incidentally noticed that phenomenon, but it was so obvious to me that it felt like it deserved its own research paper. And that's the paper that you mentioned, it's forthcoming in the North Carolina Law Review later this year, but it's available right now in the Social Science Research Network. Just Google gender inequality and patent litigation, I'm sure you'll find it, or perhaps it'll be posted on the website as well.

April Abele Isaacson:

Yeah, and we'll put it in the show notes for this episode as well. One of the things I know we were talking a little bit off mic was I'm 55 years old, I've been doing patent litigation since 2000. Kate, my co-host for this season, she'll be three years out of law school soon and is in her early 30s. And some of the things that you talk about in terms of solutions that we'll get into are great. Those were not available for me at all. And I did start my career, and we'll talk about some of the things where the government representation versus private practice is different, I actually started my career as a lawyer as a Navy JAG. And I will say that the diversity, equity, and inclusion in this, I got out in 1999, was much better than you see in the patent bar currently and even back in the early 2000s.

April Abele Isaacson:

And maybe we can pivot to the question of kind of the data sets that you looked at and why you think it is that on the government side, because we'll get into that, you have more representation of women. Is it some sort of specific programs you think that on the government side they felt the need to have more diversity, equity, and inclusion?

Paul Gugliuzza:

A couple of the basic findings of the paper are we have a data set of all lawyers who argued federal circuit patent cases from 2010 through 2019, so a 10 year period. And we find that overall about 88% of the lawyers who argued federal circuit patent cases or 88% of federal circuit oral arguments were delivered by male lawyers. Only about 12% delivered by female lawyers, which although dispiriting may not be surprising if you work in the field and pay attention to sort of who's doing the work in the field, probably not earth shattering.

Paul Gugliuzza:

However, once you slice and dice the data, you find some interesting things. And I think one of the more interesting things that April you just mentioned is that if you limit the data only to lawyers who argue on behalf of the federal government in patent cases, these are mostly lawyers from the patent and trademark office, the figure is about 50/50, right, almost equal men and women. And the magnitude of that disparity between what you see in the private sector where it's about 90/10 and in the government where it's about 50/50 is really remarkable. And so why is that the case? Obviously, government jobs can have more predictable hours and the work-life balance so to speak is a little bit better, and that can obviously matter to women who we all know disproportionately bear care-taking responsibilities.

Paul Gugliuzza:

But I think it's also important to note that these jobs at the PTO, in the Solicitor's Office at the PTO, these are really great jobs, right? If you are a patent litigator and what you like to do is argue about patent law, that's all you do all day long is you're writing briefs in appeals from the patent office and arguing cases at the federal circuit. So because they're desirable jobs, it allows the patent office to be relatively selective about who they hire, and they can hire a workforce that has the demographics that patent office wants, so there's some flexibility there.

Paul Gugliuzza:

And then the other side of it is that at the patent office, unlike in private practice, the norm is very much, if you write a brief, you will deliver the oral argument to federal circuit. And so if your workforce is roughly evenly gender balanced, then you're going to end up with roughly evenly gender balanced composition of lawyers presenting oral argument to the federal circuit. And so that's a big factor in what we find as well.

Rachel Rebouché:

I don't have a lot to add to that, but I would underscore that the selectivity, when we talk to folks who work in government and make hiring decisions, they are able to use their influence and power and the selectivity of the job, the prestige of the job, to ensure that the people they hire are more diverse, are more representative of the population at large. And so I think it's not only the nature of the work and how work is assigned and then brief to oral argument, but I think it's also a decision on the part of the PTO to focus on hiring people of color and women.

Paul Gugliuzza:

And what I really like about highlighting the disparity between private practice and the government is it links into to some of Rachel's prior work on ... I think it makes clear that this isn't necessarily a patent law story, right? This is about certain areas of practice of law, or maybe even sort of the corporate world more generally, where women are kind of systematically absent. And it's not a question of are there women who are qualified to do this work, are there women who can do this work, right? Is there a pipeline of women to do this? I think like this finding kind of blows that up a little bit. These women are out there and there's something that's happening that keeps them out of the highest echelons of private practice, but not other areas, and we should think really hard about what's causing that and ways we might address that disparity.

Rachel Rebouché:

No, it's because we started the paper ... The common explanation that women don't do patent law, or they're not in STEM areas or they fill in the blank. They're excluded because there are not enough qualified people to fill those roles is just not true.

Kate Geyer:

Yeah. I was going to follow up and say it relates similar to what you were talking about later in the paper with the structural way that private practice is set up that really is what keeping women out of the workforce. But to back up to one thing you said is you said the power of the PTO to really hire and focus on diversity, we are seeing firms who are also starting to focus on diversity in their hiring and in their promotion. But why do you think the firms are less effective at that hiring? Even though it is still competitive and they are focusing on it, what other things do you think are affecting private practice that leads their diversity efforts to not be as successful?

Rachel Rebouché:

I think that compensation plays a large role in it that I think it's laudable and we commend efforts to increase diversity in hiring and in promotion. But the way in which your work is rewarded through compensation and the out-sized rewards that equity partners can receive for driving up business or reputational effect, that doesn't necessarily change the surrounding culture of competition or insiderism. It reinscribes the set of incentives that aren't necessarily conducive to more inclusive or collaborative ways of working or distributing resources in the workplace across levels of seniority or across different hierarchies.

Paul Gugliuzza:

Yeah. I mean I think if you look at the numbers, across the board entering classes at big law firms who do patent litigation, it's pretty gender equal these days. And in fact, it's probably been that way for a decade or so. And in fact, most law school graduating classes have been roughly equal since the 2000s, if not a little bit before. So it really is the story like something happening on the way up to the very top that is excluding women, and I think again that sort of highlights that this paper, although the data we have is about high level patent litigation, I think you could probably tell a similar story about high level litigation in any other high stakes corporate litigation context or even maybe the corporate world more broadly.

April Abele Isaacson:

And to that point Paul, I actually watched a very interesting documentary that was about kind of directors, women directors in Hollywood, and the figures were very similar. It was like 16% of the directors were women, and the women that were being interviewed were like, "We're available. We're here, we're available." And then one network was called out for having some of the most terrible stats with women, and they did some really great work to turn it around and then half of the directors were female. So like you said, it's kind of in the corporate culture in general.

April Abele Isaacson:

But one thing I was wondering, do you think that Title VII in terms of the federal government thinking about making sure they're complying with Title VII may be one thing, and then on the private practice side, I want to talk about these winner takes all and new boys clubs and old boys network that I certainly dealt with in my career. Do you think that maybe part of what also drives where there's change on the federal government side as opposed to some of these institutional biases in private practice?

Rachel Rebouché:

I don't know. I mean certainly as a matter of policy, you saw the Biden administration come in, and the one of the first memos they released was their commitment across agencies and across the board of increasing diversity along a number of different characteristics. I think that Title VII has had an interesting effect in the pipeline for education and then entering the professions. But I'm not sure what effect it would've had on an office like the PTO.

Paul Gugliuzza:

Yeah. Yeah. I mean for me a lot of this comes back to the economic incentives, right? In private practice, there's just not really an incentive to give away say a federal circuit oral argument to some other lawyer if you feel like you can handle it, right, to the extent your compensation is tied, maybe not to the number of arguments you give, but client relationships, how much business are you drumming up, things like that, the incentives aren't there. And so I think the one reform that we think is really important, although admittedly hard to implement, is tying lawyer compensation, particularly partner compensation, in some way to objective diversity and inclusion metrics because until there's a really clear objective tie between diversity and inclusion and the bottom line, I think the incentives are just not pushing for broader inclusion, whether we're talking about patent law or elsewhere.

Paul Gugliuzza:

And the PTO, that's just not a relevant consideration. Gender diversity is a consideration. Racial diversity is a consideration. Diversity of educational background, whatever it might be, there's lots of things that the PTO might think about in structuring its workforce, but those economic incentives are not there to pull it away from diversity like they are in the private sector.

Kate Geyer:

I think that ties into one of the examples you gave in your paper from the client side and the clients creating some of those economic incentives is I believe there is an example where one of the clients said, "If you don't meet your diversity numbers, we're docking your pay by 10%." Do you think that those kind of incentives from the client side, would it help that decision making? Is 10% enough, or does it need to be more carrot than stick? Or what kind of incentives do you think could really help that decision making?

Rachel Rebouché:

That's a great question. Whether 10% is enough, I think that the value of those very public statements, the value is the reputational cost and gains. And so I think it allows HP to brand itself as a forward-thinking company that cares about diversity, that cares about inclusion. And then it allows a law firm that meets that goal to also brand itself as someone who is courting clients that also care about diversity, that has a commitment to having a workforce that is more diverse.

Rachel Rebouché:

What we found in our research though is that there are these standout examples that attract a lot of attention, but often when people dig into how they work, it's not altogether clear that HP is actually taxing 10% of law firms. It's not clear that the benchmarks of what it means to have met the diversity expectations of a company are clear. There's a lot of interesting research out there on the legal profession generally in which law firms complain that they produce information and they comply with benchmarks, and then nothing happens. They get no feedback, they get no additional business. It doesn't result in kind of a meaningful change with the client. And so there's a problem of transparency really I think in whether or not what happens now is producing the kind of change, both in terms of the immediate decisions that law firms make but also the kind of structural cultural changes that you mentioned earlier.

Paul Gugliuzza:

Yeah. I think that the policies tying firm compensation to diversity goals are great, but as Rachel mentions, a key component of that is follow-through by the client, right? You say that you're going to dock a firm 10% if they don't meet your goals, then you actually need to do that thing or else the firm is not going to change its behavior and response. So the follow-through is a problem. And I think the other thing to keep in mind here too is these companies can have these sort of lofty goals about diversity and maybe they even insist generally that their matters are staffed by lawyers with a diversity of backgrounds.

Paul Gugliuzza:

But I think what our data shows is that whether or not that's happening in a broad sense, when it comes to like the key decisions, like who is going to be the face of our very large company in this incredibly important federal circuit oral argument? Those opportunities are going to the usual suspects, right? And so even though maybe some people are getting lifted up a little bit through the broader policies, when push comes to shove, we're seeing the same inequalities that we've seen and we all know exist for a long time. So I think those policies are great, but without a little follow-through, without serious commitment of crucial decisions being influenced by diversity considerations, I'm not sure how much we're going to see big changes.

April Abele Isaacson:

And I was in-house counsel actually at a public pharmaceutical company for almost five years, and we didn't have formal outside counsel guidelines, but we sort of had informal. So we'd have the people come in the pit, they have a diverse team that would come in including maybe 50% women, and then I made sure that I policed the bills because I actually reviewed the bills to see who was actually billing the time. And I also knew who was actually doing the work, the brief writing, etc.

April Abele Isaacson:

And there was one occasion where we kind of had a Markman hearing, so a claim construction hearing that popped up at the last minute that we were going to get kind of wedged into the judge's schedule. And the female partner called me to let me know that the white, gray haired older kind of senior guy on the case was not going to necessarily be available on those dates. And I said, "I don't care. I know that you're doing the work. I'll let you guys decide how you want to split it up amongst yourself, but I'm assuming that you're going to do at least part of the argument. It doesn't matter to me that he's not available."

April Abele Isaacson:

And then one of my colleagues, she had the same approach to things, who happens to be female, she's Vietnamese descent, and also a lesbian. So for her, she was particularly interested in making sure we had all these diversity types of things in place, but that was us policing things like you said. I could also see on some of those bills who was an equity partner because of the way that the billing showed up, but that was me digging into the data so to speak.

Paul Gugliuzza:

And that's a great example too because I mean I came out swinging earlier saying it's all about economic incentives. I definitely don't want to downplay the cultural aspect of it as well. And I love your example of sort of being the in-house counsel who's a woman paying attention to these issues because one of the recurring themes in our conversations about lawyers in practice about this project is the companies that tend to do better in terms of diversity among the lawyers they hire have more diversity at the companies themselves, right? So if there's a lot of women in the general counsel's office, lo and behold, they end up having more women representing them at the federal circuit. We had several examples of that happening in our conversations about this project.

Rachel Rebouché:

That conversation reminds me of the conversation we had with the Federal Circuit Bar Association, where in-house counsel said, "I make it one of my goals to hire people of color, women of color, women to handle our cases." And one of the things that really struck me about that conversation, and I would love to hear your thoughts Kate and April, is there was also then a theme of the women "rainmakers" who've made it. And I've heard in some of these conversations, "Well, what's the solution? Well, you just got to lean in." I'm here and I've worked hard, but it's because I took the "bull by the horns" and I played the game and I won. And that does not come up in our paper as a solution or what is going to change diversity in appellate litigation.

Rachel Rebouché:

But I'm curious about your thoughts as both patent experts and litigators and lawyers about the prevalence of that idea, that the women who are at the top who make it to the top, have something special about them, they've had a different approach to how they've engaged in the workplace. I'd be fascinated in what you think.

Kate Geyer:

I have two thoughts on that. The first one is the women who I think have made it have been able to play in a system that doesn't work for the majority of people. And it's great that they were able to play at the system, but I don't think the answer is only women who can play in the system that was built when women didn't work and women weren't lawyers. We should just keep it this way. I haven't seen many women in my practice take that approach because it's not necessarily pulling up the ladder behind you, but it's not making it easier either. It's kind of just saying the status quo is okay. So I hope most women look at this and say just because I had to go through it doesn't mean that was right and it doesn't mean that there aren't ways to make it easier or just to make the entire practice better because we do talk about women a lot and how to make women be able to participate in the profession fully.

Kate Geyer:

But there are probably men who also take on more childcare responsibilities or would like to, but they can't because of this traditional dynamic where the woman stays home and the man does the work. So I think there are benefits for both genders if we broaden that. And the other point, and maybe this is kind of a separate point, but what I heard in that last bit of conversation too is that it sounds like women are the ones doing all the work for making diversity work. And that's kind of just like an extra level or an extra thing women have to do, so it's not just doing your job, doing well, being promoted, but then on top of that, it's extra you have to do to help the women behind you or to change the system. And I'd like to hear more male rainmakers, the more senior white men generally, I'd like to just hear more about them taking on that task and them prioritizing it because I think the more women have to do the work, the more they're going to get burned out and it's just something extra on top of a job that's already very difficult and time-consuming.

April Abele Isaacson:

And maybe I can speak to that because like I said, I've been kind of doing patent litigation since 2000, and perhaps another story. I remember I was a senior associate and I was working seven days a week. And I remember there was a partner I worked with who would have his wife come drop off dinner, was taking care of the kids, picking up the dry cleaning, doing all the errands. And I told him, "I either need to have a half an hour off to go to the store and buy more underwear, or actually have some time to go home and wash my clothes because I don't have anybody to do that for me," because I was a single woman working seven days a week.

April Abele Isaacson:

And then to Kate's point about ladder pulling, I did see that with the generation above me, I'm a Gen Xer. I got a lot of people that said, "This was really hard for me, so good luck. I am not going to feel like I have to do anything for you," and they pulled the ladder. But I personally feel like I have a responsibility to the next generations after me to make sure that doesn't happen. So it may be that for me in my career, I won't necessarily have the ability to fully achieve what I would've liked to have achieved because of my generation, but I'm hoping that we can do things to change some of these institutional biases to help Kate's generation and beyond. So I'm curious, Paul and Rachel, your thoughts about that and what Kate said earlier.

Rachel Rebouché:

I mean I agree with the way you put that Kate, that we think it's important to talk about what courts can do and what clients can do and what law firms can do. But of course the question is a much more complex, difficult question around changing what are the expectations of people in a workplace. A law firm followed suit of most of corporate America and being in its compensation structure, as we've talked about, and frankly in having different expectations about what profit means and how profit should decide and determine an institution or an organization's priorities and culture.

Rachel Rebouché:

And so, one of the things that we're talking about is it also seems to me that the add women and stir approach to diversity and inclusion is so lacking. Not that giving people professional opportunities is a bad thing, but you're not changing the kind of cultural impediments to advancement that you've identified Kate and the fact that April you've just said that you may not accomplish everything that you necessarily want to accomplish professionally because you've made a commitment to mentorship and the time that takes. And having a wonderful program like this, that says something about the need for continued change so that there is space to do the things you want because you're being rewarded for doing these things that are expected of you as a senior attorney.

Rachel Rebouché:

And so that I think it's a difficult set of questions, but I also agree with Kate that it's everybody's problem. So it's not an issue that you can have one diversity coordinator who's the only person who's supposed to care about what the workplace is like, and someone who looks like Paul is exempt.

Paul Gugliuzza:

One of the responses that we sometimes get to this project is, "Well, is this just a timeline problem? As time goes by and more women are entering the patent workforce, this problem is just going to kind of solve itself." And I think we're pretty emphatic in saying no, right? I mean overt gender discrimination has been unlawful for decades, yet we still find these incredible disparities at the highest levels of private law practice. And so, one of the things that I like to think about with this project is the 88% of oral arguments being delivered by men, this is not exclusively the province of a bunch of like really old crusty white guys who are going to retire in the next decade. It's a wide range of men who are doing this. I don't think we're really telling a story very ... I mean although certainly overt explicit gender discrimination occurs, I don't think that is what we're picking up. I think we're picking up something that's much more subtle, much more structural, and therefore makes it a lot harder to solve. So I think it's what makes this project fascinating, intriguing, but also potentially a little dispiriting because there's things that clients can do, there's things that firms can do, there's things that courts can do, but what's driving our results is really subtle and really hard to fix.

April Abele Isaacson:

You mentioned in the paper and have also mentioned while we've been talking is that law firms have this diversity, equity, and inclusion or some sort of officer or these initiatives, but are they truly understanding what's actually happening? Because there'll be client relationship, attorney, and origination credit and things of the like, and what I've seen over my career is it's a white dude that has the relationship with whatever client, he bequeaths that when he retires or as he becomes more senior to another white dude. And then they don't really have to do the work other than make sure they don't screw up the client relationship, and it kind of perpetuates from there.

April Abele Isaacson:

Or I've seen where it's the guy that ... And by the way, Kate and I both have STEM backgrounds just to put that on the record, and that goes to another point that we can maybe talk about a little bit more, and then this whole thing gets perpetuated. Or you get the guys that maybe kind of nerds in college, that were engineers or something, and now have kind of got some juice at their law firm. And then they have some white dude that looks like them that they think is kind of cool, and then they give him the opportunity, and they're not even aware of the fact that they're excluding women.

April Abele Isaacson:

And then maybe a little side note to that. I've certainly been called in as the woman, the token woman, to be on a trial team because the client wants a woman or it's a female judge. They're not getting it. They're not doing it for the right reason. They're doing it, because they're feeling forced to do it. So I know I put a lot in there, but I'd love to see if you can unpack that.

Rachel Rebouché:

Yeah. I think of a couple of things. First, I think of the direct perpetuation of exclusive practices, so that is the kind of unthinking who's my mentee, do I care that my mentee looks exactly like me? Do I care that I'm signaling to other people in this organization and of course to this person that they are the heir apparent to my clients and the resources that I've AMAs during my career? There are those explicit markers of privilege. And I think that what you're uncovering as well is what makes us so pernicious is all the implicit markers of privilege too. The way of talking, what we highlight in the paper, you are able to stay ... To your example of a previous position, you're able to stay in the office until midnight because you don't have to go home and put children to bed or other ... You're able to go out after that 10:00 p.m. shift and grab a drink and talk about your day.

Rachel Rebouché:

You have a language to do that. You have a way of talking to each other. You don't have the inclusion tax of feeling like you have to show up at a meeting because you need someone that looks like you at the table, or you need to go to a committee meeting because they need someone that looks like you to work on this aspect of firm governance. That certainly happens at law schools, and I can tell you in this Interim Dean position, I am constantly reminded about how pervasive some of those practices are to the even more implicit privileges.

Rachel Rebouché:

I've read some chapters of a really fascinating book called The Whiteness of Wealth by Dorothy Brown, and it's how the tax system and the accumulation of wealth and how that's passed down generation to generation has so entrenched racial inequality and injustice in ways that we never think about because we look at the tax system and say, "Oh. Well, that practice is colorblind," but it's absolutely not because of the long term arc of inequality.

Rachel Rebouché:

And that's missing from the conversation too. There are these discrete moments. There are the firm based moments, but there is also a conversation about implicit bias and gender inequality that stretches generations. I mean Kate to your point about if you don't want to change the status quo, you're not going to get very far because the status quo is one in which women weren't welcome. That's not true anymore, but it's not a history that doesn't exist and doesn't have footprints in the present.

Paul Gugliuzza:

Yeah. And having come from this the world of private patent law, federal circuit practice myself, one thing I personally hope to accomplish with this paper is opening some eyes among the male attorneys that I worked for who I know they're on board. They're supportive of diversity. They certainly wouldn't want to be part of a system that's systematically excluding women or people of color, whatever. And so, one small thing I hope to accomplish with this paper is opening their eyes in objective ways. You've probably noticed that you're mostly surrounded by other men who look kind of like you. Actually, it's maybe even worse than you think. And maybe that spurs a little bit of voluntary action among at least some of these lawyers who have the power to affect some changes.

Kate Geyer:

And maybe this is a little bit of a pivot, but in your paper, you also kind of specifically highlight that pharmaceutical companies seem to be doing something different and seem to be having better representation. What do you think is going on there and that they're doing right so that they are actually seeing progress in women being represented?

Paul Gugliuzza:

I think there's more women who work in those fields, and you find more women in the general counsel's office at pharmaceutical companies, and they end up tapping more women to argue on their behalf of the federal circuit. I'm not sure it's much more complex than that. I think to dig a little deeper, I would say although the pharmaceutical companies tend to do a little bit better in terms of their gender divide, we find in our paper it's about 16% to 84% when you focus down on pharmaceutical cases compared to about 90/10. Overall, they still don't do great. And in fact, I've got another paper with a couple of other co-authors Sean Tu at the University of West Virginia and Amy Semet at the University of Buffalo, where we look specifically at the pharmaceutical industry and we look in particular at the examination process in district court patent litigation.

Paul Gugliuzza:

And although the proportions of women appearing in both of those on behalf of private sector clients is a little bit better, it's in the 30% range, the proportion of women entering law school who have backgrounds in those areas of science is actually over 50%. So women are overrepresented in those fields on the scientific side, and they're overrepresented among law students who have those backgrounds. And yet there's still a gender disparity in practice. So although it's better, and I think it's better just because there are more women working in pharmaceuticals, chemistry, biology generally speaking, there still is a disparity. It's still not a pipeline question there because the pipeline of women entering law school with those backgrounds is very robust and the water is leaking out of the pipe at some point before they're getting really heavily involved in sort of high stakes, either prosecution or litigation.

April Abele Isaacson:

And as someone who has a biochemistry and cellular molecular biology background and actually does Hatch-Waxman work, I can attest to what you're saying Paul is accurate. I do know that on the panel where I saw the two of you speak back in the fall, there was someone from Sandos and you also mentioned in your paper, I do have some former colleagues that work there. One who I think her title is Global Head of Litigation. It seems like they've done a great job in terms of the representation of women arguing at the federal circuit. What's your understanding about what that company in particular has done to kind of shift that number to being really close to 50-50?

Paul Gugliuzza:

They care. I mean it's what I just said a while ago when we were privileged to be on a panel as April mentioned with a lawyer from the general counsel's office at Sandos, a generic pharmaceutical company. And it's part of Novartis, I think. And they just care. They care. They are attuned, they're paying attention. They're doing the thing that I hope more people will do because of our paper. Like they know this, they want to bring women, they want to bring underrepresented people to be the face of their company in these high stakes cases, and so they took steps to accomplish that. And maybe our paper brings some awareness among people who might not be aware of who's being the face of their company so frequently.

April Abele Isaacson:

The one thing I saw in the paper was you did call out some big tech for maybe not doing such a great job. I saw another panel that was more recent for the Federal Circuit Bar Association where there were I think two women from Apple and they talked about how they're wanting to change this whole concept of origination credit and things of the like because it does perpetuate this institutional bias on the behalf of the law firms. I don't know if you have anything to comment related to that?

Paul Gugliuzza:

No, I think that gets to my point about changing the economic incentive, right? And if you can tie those incentives to something that's not going to be so implicitly biased in favor of white men, that's going to be a good step to getting people besides white men to appear on your behalf.

Rachel Rebouché:

There's the economic incentive, but as we've been talking about, there are also these reputational gains that I don't want to undermine, that you see it in the literature on corporate social responsibility, that something like tech and the gig economy. Silicon Valley has not been known as the most gender welcoming place in the world.

Kate Geyer:

I'm in the Bay Area, so I hear you.

Rachel Rebouché:

Exactly. We put back on the table are you actually realizing diversity goals, but there is a noticeable shift in at least the rhetoric that companies offer in their commitment to advancing diversity. And you see that in sectors where there have been lots of concerns about the lack of diversity or the practices that undercut gender inequality or that frankly are blatantly gender-discriminatory.

Paul Gugliuzza:

I mean it's pretty amazing we're here having this conversation, right? I mean I think this was a conversation that wasn't happening even two or three years ago, and thanks to podcasts like yours, this is in the news for patent folks every day. I feel like I open Law360 or Bloomberg or something, and there's always a mention to considerations of racial diversity, gender diversity. I think it's been great we've brought attention to this issue. I mean you can't solve the problem until you identify the problem and that we've so clearly identified the problem, that's a huge step. And so hopefully we'll keep taking those steps.

Rachel Rebouché:

Right. And I like pushing against the idea that this is just lag time and that, well there's a kind of self correction narrative that in enough time and with a new generation of lawyers, this will change, and that's just not true. It's not true that there is an air of inevitability to quality momentum. It doesn't work that way it seems because of something that you've mentioned earlier. You look at these upper echelons of appellate practice and there are kind of the usual suspects who you would identify with a different generation of top litigators. That's not all of them, those elite litigators are as we talked about a new boys club. They are not the hangers on from practices that span 50 years necessarily.

Kate Geyer:

And I think that the data in your paper shows that. You have a 10 year span where the numbers aren't really changing. In the government, it seems that there's some progress, but in private practice there's been none in a decade. And even I think at least at the Supreme Court numbers seem to be going backwards a little bit. So it gets to your point that just add women and stir isn't good enough.

Paul Gugliuzza:

Yeah. And I mean the arc of history is not inevitably leading to greater equity. Unless we intervene to change where the arc is going, it's going to keep arcing in the same direction so to speak. And that direction largely excludes women and it excludes people of color, and it's good to hopefully intervene and change that at least a little bit.

April Abele Isaacson:

Well and Paul, also there are a lot of men that, and I live in the Bay Area where I think a lot of white men think that they're enlightened so it kind of stops them from really taking some of the information because they think like, "Oh no, I'm not that guy." But then I hear things like, "I realize that playing golf and cycling are really popular things to do with clients." And I'm thinking, "Well, the female in-house counsel I know might not necessarily be cycling with you or playing a round of golf on a Saturday, so then you basically decided that you're not focusing on business development with female in-house counsel," things like that.

April Abele Isaacson:

I find that it's hard because you understand that there's a problem, but then you're doing things or the way you behave is perpetuating it because you feel like you're enlightened, but you're actually not, which is extremely frustrating to me because you kind of want to take the guy and shake him a little bit and kind of say like, "You're not getting it." Or I see that I'm not considered an equal, but then people are like, "But I'm mentoring this more junior female associate or a more mid-level female associate." So they think that they're like this woke enlightened person, but then they don't look at me as an equal. I don't know what your response is to that.

Rachel Rebouché:

Yeah. I mean I think that's a really interesting ... Maybe it gets to a little bit of what I was after with the kind of lean in comment that some of these interpersonal dynamics we take so for granted. They're imprinted on us that we should have certain expectations of what kinds of questions we can be asked and what kinds of conversation we should make. And I find the implicit bias material in this way really interesting. When you read about the experiences of women of color in the legal profession and the amount of mentorship they're asked to give but don't receive, the amount of service work they're asked to do that. Then what we said earlier, the inclusion tax, all these things add up and it's pernicious for the reason that you just said April is because at one point it's hard to put your finger on those types of interactions that perpetuate that status.

Rachel Rebouché:

And then there's an arsenal of retorts or responses when you suggest that could be at work. I mean when you say to a colleague, "No, I'm not going to take notes at this meeting because I have to take notes at every other meeting. And why am I always the person that asked?" I will give you an example as well from we had what we call a faculty day where we do strategic planning and we were in breakout rooms. This was several years ago. I started to count and make note every time I was in a breakout room who was asked to be the recorder, to take the notes and report back as if it was some great honor to get to take the notes and report back.

Rachel Rebouché:

Inevitably 95% of the time, it was a junior woman, and it didn't matter ... And then, I talked about it with a friend. I said, "Every time this happens, let's call it out." And we started to do it, and the range of responses we received were just shock and, "Oh, that's not what I meant," and, "Well, you did it last time." I'm rambling a bit in apologies, but it's to your point that some of it's subtle, and then when you highlight it, there are lots of naturalized responses that minimize or dismiss what you're seeing.

Kate Geyer:

There was actually an article I think in the last year that someone did an analysis at the Supreme Court of how often the male justices interrupted the female justices, or I think how much just the female justice versus males were interrupted. I forget the precise details, but that made the rounds and it was the same thing. You saw some people just say it's a different style, it just has to do with the style of the justices and how they talk. I think there was ... You can never tell. The justices don't really talk about it. But I think after that came out, at least out of the arguments I heard, actually it felt like calling attention to it made people pay attention to it more.

Kate Geyer:

And I actually felt like I heard and saw less of that in some of the arguments immediately preceding it. Admittedly, I've not gone through transcripts and tested that. But it was just something I noticed when listening where I heard less of it. So at the same time, even though there are minimizing reactions, I think there's still power in calling attention to it because the next time someone assigns that, even if they got called out last time and they didn't like it and they got defensive, they're going to think about that the next time they go through it because they don't want to get called out again, even if they don't think it's wrong.

Paul Gugliuzza:

And that's a great ... And I think one thing that makes the Supreme Court example that you mentioned very salient is it's extremely objective. Maybe you have the defensive reaction, but to be like, "Look, here are the numbers," their objective that these things are happening. It's maybe you're still defensive about it, but like, you kind of got to say like, "Okay, I guess it's true." And though we've kind of focused on a narrow slice of litigation being federal circuit patent appeals, I think one of the benefits of it is it's very concrete. The numbers are what they are. And so you may think you're a great mentor, you may think you're doing all these things informally, but we can show you through these objective metrics that there is still a disparity going on here. And so, I think maybe that's one in praise of maybe go back to the transcript and see how they've done this past term. And if they've done better, I mean it's maybe an argument for these sorts of very sort of quantitative analyses.

Rachel Rebouché:

So you bring up a great point about measurement and objective because, and this is true of the law teaching, the number of processes that just exist informally, those to me are the gateway. So who are we going to invite to speak? "Oh, I don't know. Who did we invite last year? Oh, what do you think? What do you think?" When you don't have a process, when you can't explain to someone how did we get to this decision, why did we pick this person, why did we choose to spend money in that way, that's where I think a lot ... And law firms are a lot like law schools in that regard. "Well, why do we do it that way?" "Well, we've just done it that way." And so I think that there is something about both identifying these gaps, but then identifying where you don't have process, you're relying on people's conversation and formal relationships, and those are the places in which lo and behold we ... "Well, we wanted to invite speakers who were diverse, but none of them were available." Well, there was no speaker available in the country?

Paul Gugliuzza:

Yeah. And so I was on our law school's committee this year for appointing new faculty. And obviously in hiring diversity, racial, gender, all sorts of educational background, all these diversity we're very concerned about. And one of our initiatives that I think ended up being very successful in resulting in extremely diverse new class of professors that were bringing on is we just kept records. We kept records of everybody we did preliminary interviews with. What was their race? What was their gender? Where did they go to school? Anything else that we might be concerned about. And I think just having that Excel spreadsheet, the 30 or 40 candidates that we'd talked to, being able to just step back and be like, "Okay, who are we going to bring to the next step?" as compared to like who we talked to at the previous step.

Paul Gugliuzza:

Our decision making was so much better informed simply because we had made a record of what we had done. And I think the payout, we got an incredibly ... go to Temple's Law Twitter feed to see all the amazing new faculty that we've hired this year. But they're incredibly impressive, and I think they look exactly like we want our faculty to look. And a big part of it was just we weren't only conscious of diversity considerations, we kept tabs on what we were doing in a very objective way. And I think that's key, and I think hopefully our project is one part of that.

April Abele Isaacson:

Yeah, and it becomes about sort of being accountable for things in a sense. You call out BLM, #metoo, and things like that where it's kind of shining some light on some of these issues. And maybe we can have a little bit of hopefulness and positivity in terms of like wrapping this up is kind of where do we go from here? We're having these great conversations and we see things that are moving forward, but where do we go from here?

Rachel Rebouché:

No, I mean I do think there's momentum, and I think that part of it is what we were talking about in the organization by organization approach of having process, keeping track, having these conversations. But I guess I'd also make a plug that part of what #metoo and Black Lives Matter, they're calling for fundamental transformation of the way in which we have taken responsibility for pasts of racial injustice and sexism, but they're also calling for re-imagining of what is our collective responsibility for the future. And part of that has to be governments that can subsidize childcare meaningfully, that provide people the basic resources they need so that there aren't these profound income gaps that now characterize and have characterized our country. They're calling for a transformation of how we think about our workplaces, estates, and our roles in them. And that's a pretty tall agenda, but I'm an optimist and I think that those should be our shared priorities.

Paul Gugliuzza:

Yeah. I mean it is daunting. We're learning, right, we're at the very beginning of achieving those goals that Rachel mentioned. It's a painful process, right? There's a lot of people who want to get in the way of, there's a lot of people who benefit from the system we have and the system that we capture in our studies. So it's not going to be easy. And having this conversation is a really important first step. Some of the small steps that we've mentioned today and that we mentioned in the paper, they're goals that are definitely worth pursuing. But without this sort of more fundamental changes and the more fundamental reckoning that Rachel mentioned in the Black Lives Matter is calling for, the #metoo movement is highlighted. There's only so much change that's going to happen. It's daunting to be sure, but I think there's a good reason to put your head down and keep working towards it because otherwise we'll be back here in 10 years and the percentage of oral arguments delivered by females would be like 13%.

April Abele Isaacson:

Well, and the thing is it's also people need to recognize that diversity is good for business. I mean it truly is. And I was talking to someone and I said, "Diversity is who we are." I live in the Bay Area and California, where we're going to pretty soon be a majority minority state and the Bay Area is very diverse, so if people think about it that way, I hope that they can realize it's not just something that's right, but it's who we are and it actually is going to help companies to be better in terms of you're not just looking straight at the mirror, you have the mirror from all different sides and different perspectives that help you just to do a better job for your company and then for the country as a whole.

Paul Gugliuzza:

Yeah. We started talking about sort of motivations for this project. One of my sort of personal motivations or interests in this field is I teach intellectual property classes, I teach patent law classes, and there's a lot of women in those classes. I was lucky enough to actually give a presentation about this very topic up at Hofstra Law School a couple weeks ago, and it was an advanced intellectual property seminar, so these are students who are really committed to studying IP law. And it was like 12 women and three men. And so, what's happening that I encounter in my day to day of teaching these incredibly bright, enthusiastic women who are interested in this field, why are they not showing up at the highest levels? I want to change that, and hopefully our paper at least helps a little bit.

April Abele Isaacson:

Kate, any last questions or thoughts?

Kate Geyer:

No, this has been really enlightening. And as a math and science person, I like that the focus on just writing it down, the focus on just tracking the data, just the fact that being aware helps the problem. I think to scientists, that must sound like a duh, but for the rest of the world, it might be novel because it's just they've never done it. And momentum means you just keep going in the same direction until something pushes you off track.

Paul Gugliuzza:

Yeah. Yeah. I mean just sort of more generally my approach as a scholar is it never hurts to just find out the data, start counting things. You always find interesting things. I mean I have to say coming to this project, the data we found about the PTO and the gender equality among the lawyers represented, I expected to find the inequality generally. I did not expect to find that, and it just jumped off the page once we started counting, and that was fascinating. So I think that's kind of a lesson you can apply across the board of even if you have this intuition, try to quantify it and dig. You might be surprised about what you find, it might confirm your intuition in some ways, but it might surprise you in other ways, and so there's a real value in creating this sort of knowledge.

April Abele Isaacson:

Well, and I think that the work that you have done and podcasts like this and other things, the Federal Circuit Bar Association is doing, etc., hopefully can continue to shine the light on these issues and we'll continue to do the work. I cannot tell you how much I appreciate having the two of you on here and the work that you've done and continue to do, really remarkable, and thank you so much for your time and being part of this project.

Rachel Rebouché:

Thank you.

Paul Gugliuzza:

Thank you for having us. It's been really great.

Kate Geyer:

Thank you for joining us today. Please subscribe to Sidebars on Buzzsprout, Apple Podcasts, Amazon Music, or your preferred podcasting platform, and don't forget to rate or leave a review.

April Abele Isaacson:

If you enjoyed Sidebars, we invite you to check out Kilpatrick Townsend's Medicine and Molecules Blog at Kilpatricktownsend.com to read, watch, and listen to other related insight on patent law. We'll also put that information in our show notes. The opinions expressed on this podcast are our own and are not necessarily those of Kilpatrick Townsend.